Could the Hulk Hogan Case Change Journalism?

by Samantha Barbas

Samantha
Barbas, a professor of law and legal history at the
University of Buffalo Law School, is the author of Laws
of Image: Privacy and Publicity in America (Stanford
University Press, 2015), and Newsworthy: The Supreme Court’s
Battle over Privacy and Freedom of the Press (Stanford
University Press, forthcoming 2016).

Regardless
of whether you agree with the Hulk Hogan verdict or think the lawsuit will
change the First Amendment, one thing is clear—the case hinges on “newsworthiness.”

In privacy law, newsworthiness is a term of art – it has a technical legal meaning.
Newsworthiness is a defense to the kind of privacy claim Hulk Hogan brought
against Gawker. If an article or picture is newsworthy– or a “matter of public interest,”
in the language of some courts– it can’t be grounds for an invasion of privacy
claim.

What
is newsworthy? Quite a bit. A legal treatise describes newsworthy items as
including “publications concerning homicide and other crimes, arrests, police
raids, suicides … catastrophes of nature, a death from the use of narcotics, a
rare disease, the birth of a child to a twelve-year-old girl … and many other
similar matters of genuine, even if more or less deplorable popular appeal.”

For
the most part, courts have deferred to the press on newsworthiness. If a publisher
thinks something is worthy of being printed, then it’s often regarded as newsworthy
under the law. Items that courts have deemed newsworthy include the names of
rape victims, graphic images of people maimed in car accidents, embarrassing
facts about celebrities’ private lives, video footage of a woman being raped, and
in one case, excerpts of a celebrity sex tape involving Pamela Anderson.

There
have been exceptions. In some cases, courts have declared matters too intimate to
be newsworthy – facts about people’s health conditions, or their nude images,
for example. Most of these decisions have involved ordinary people, not public
figures. The law’s position on the privacy of public figures is fairly unforgiving.
Celebrities are said to “waive” most of their right to privacy when they enter
the spotlight. Not only do they assume the risk of losing their privacy, but their
private facts are “matters of public interest,” as the public is always
interested in celebrities.

This
is why the Hogan case is important: if the verdict stands up on appeal, it could
stake out terrain for the privacy of public figures, and potentially signal the
beginning of a rollback of the broad view of newsworthiness that’s prevailed in
the law for over 75 years.

***

The
legal action for invasion of privacy originated in a famous 1890 Harvard Law Review article titled “The
Right to Privacy,” written by lawyer Samuel Warren and future Supreme Court
justice Louis Brandeis. The article was a response to the surge of mass media in
the late 1800s. New technologies enabled the mass circulation of newspapers,
and publications featuring sensational gossip and “yellow” journalism found a
wide and receptive audience.

“The
press,” Warren and Brandeis wrote, “is overstepping in every direction the
obvious bounds of propriety and decency.”
“Gossip is no longer the resource of the idle and of the vicious, but
has become a trade, which is pursued with industry as well as effrontery.”
Warren and Brandeis proposed a “right to privacy” that would allow people to
sue the press for embarrassing publicity of their private lives. By the 1940s, most
states recognized a privacy action.

Warren
and Brandeis recognized that the right to privacy could have implications for freedom
of the press. As such, they proposed a privilege for publishing “matters of
public or general interest,” as protection for news reporting. Their view of “matters
of public interest” was narrow, however. “Matters of public interest” were
topics that served the “public interest,” in the sense of the common good. Sensational
gossip was not a “matter of public interest.” Chatter about a politician’s sex life
would not be a “matter of public interest,” as it had “no legitimate relation”
to his career.

This
cramped view of the “public interest” would be unconstitutional today. It wasn’t
back then. The First Amendment prohibited “prior restraints,” suppressing speech
before publication, but it didn’t protect people from being penalized for material
with a “bad tendency.” Insofar as gossip was unsavory, it could be punished
without violating the First Amendment. Freedom of the press, it was said, was
not “license for its abuse.”

Yet
to some critics, a too-narrow view of the “public interest” seriously threatened
freedom of the press. Newspapers could be made to pay damages for innocently
publishing embarrassing pictures of people. Politicians and public officials
could use their “right to privacy” to suppress reports of corruption. Not
knowing what someone might see as humiliating, publishers could self-censor,
inhibiting the circulation of important news.

***

Concerns
with the free speech implications of privacy law ramped up in the 1930s, an era
when, in the words of one First Amendment scholar, “speech started to win.”

In
the 1930s, “clear and present danger” became the First Amendment standard on
the Supreme Court. The liberal, New Deal Court
invalidated the convictions of Jehovah’s Witnesses, socialists and other
dissenters under laws restricting speech that didn’t pose an immediate threat
to public safety. The Court regarded
claims involving free speech rights with heightened scrutiny -- with a “thumb
on the scale” for speech.

The
Court’s First Amendment jurisprudence reflected ideals of pluralist democracy–
the idea of democracy as a participatory enterprise built on “public discussion.”
Democracy depended on public debates on “matters of public concern” -- “all
issues about which information is needed or appropriate to enable the members
of society to cope with the exigencies of their period.” The Court recognized
the central role of the media in “public discussion.” “The newspapers,
magazines, and other journals of the country, it is safe to say, have shed and
continue to shed more light on the public and business affairs of the nation
than any other instrumentality of publicity,” declared a 1936 opinion. The
purpose of freedom of the press was “to preserve an untrammeled press as a
vital source of public information.”

These
liberal views on freedom of speech affected privacy laws. In the mid-20th
century, courts expanded the “matters of public interest” privilege. The Warren
and Brandeis definition of “public interest” had been normative: what was a
matter of “public interest” was not what actually interested the public, but what
judges believed the public should
know, in its own best interest. In the new model, “matters of public interest” was
descriptive: if material attracted the
public’s interest, it was a “matter of public interest,” or “newsworthy.” The
objective of this broad newsworthiness standard was to avoid a “judicial
censorship” of the press – to get courts out of the business of judging media content.
Such decisions, courts said, were best left to the public and to the press.

Because
there was public interest in celebrities, facts about their personal lives were
newsworthy “matters of public interest.” When NBC broadcast a wiretapped conversation
between Charlie Chaplin and a radio host, Chaplin sued for invasion of privacy.
A court held that Chaplin waived his right to privacy over the conversation
because he was a “prominent public figure whose activities are of general
public interest.” The right to privacy “does not exist where a person has
become prominent or distinguished.”

Ordinary
people had a stronger right to privacy, but they, too, gave up their right to
privacy when they were involved in “matters of public interest,” willingly or
unwillingly. In Waters v. Fleetwood,
from 1956, the Supreme Court of Georgia held that a newspaper that published
and sold photographs of a brutally murdered girl was not liable for invasion of
privacy. Even though the photos were gruesome, the newspaper had a right to
print and sell them because the murder was a “matter of public interest.”

By
the 1950s, courts often equated media content with “matters of public
interest.” If something appeared in the press, by definition, it was a “matter
of public interest” and newsworthy. This circular definition of newsworthiness essentially
gave the press the power to say what was privileged, and to free itself from
liability for invasion of privacy.

***

In 1967, in the landmark case Time, Inc. v. Hill, the Supreme Court almost reined in “newsworthiness.”
The case involved a strange series
of events. In 1952, the Hill family was held hostage in their home by escaped
convicts. The fugitives treated them politely, took their clothes and car, and
left them unharmed.

In
1954, a novelist published The Desperate
Hours, a “true crime” thriller about a family held hostage in their home by
escaped convicts. The Desperate Hours
was based loosely on the Hills’ story but leavened by the author’s imagination.
The novel was filled with violence and suspense; in the story, the father was
beaten and the daughter raped. The bestselling book was made into a Broadway
play, and later a Hollywood film.

In
1955, Life magazine ran a story on
the play. The article falsely described the play as a “reenactment” of the
Hills’ experience. Life used the Hill
family’s name to give the piece a “newsy” tie to a “real life” crime. The
family was devastated by the unwanted publicity, and they sued Time, Inc., the
publishers of Life, under a New York
privacy law. They won at trial, and
Time, Inc. appealed to the Supreme Court. Time, Inc. argued that the article
was “newsworthy” and the judgment for the Hills violated freedom of the press.

A
6-3 majority initially decided in favor of the Hills. Life’s use of the family’s identity was not “news,” wrote Abe
Fortas for the majority. It was irresponsible journalism inflicting “needless, heedless, wanton and deliberate injury” on
innocent citizens. “The deliberate, callous invasion of the Hills’ right
to be let alone … cannot be defended on the ground that it is within the
purview of a constitutional guarantee designed to protect the free exchange of
ideas and opinions.” Fortas went as far
as to declare that the constitutional right to privacy, recently established
in the 1965 birth control case Griswold
v. Connecticut –in “penumbras” and “emanations” of the Bill of Rights –
protected people from invasions of privacy by the media.

But
before the Fortas opinion was issued, votes switched. The turnaround was the
result of a feud between Fortas and Hugo Black, who believed all restraints on
publishing were unconstitutional. The majority that voted for the Hills
dissolved; a new 6-3 majority voted in favor of Time, Inc.

William
Brennan – the author of the 1964 opinion in New
York Times v. Sullivan -- wrote the new majority opinion. Human-interest
stories and gossip columns -- the “vast range of published matter” that
appeared in the mainstream press -- were protected by the Constitution, Brennan
suggested. If a publication was a matter of “public interest” –if the public was
interested in it -- it was newsworthy. Brennan said the Hills had no reasonable
expectation of privacy when it came to media publicity: “Exposure of the self to others in varying degrees is a concomitant
of life in a civilized community. The risk of this exposure is an essential
incident of life in a society which places a primary value on freedom of speech
and of press.”

***

The
Hill decision applied only to cases
brought under New York’s specific, peculiarly worded privacy law. It did not
set out a constitutional definition of “newsworthiness,” nor say there could
never be a case where an offensive publication warranted a privacy claim. What Hill did make clear is that newsworthy “matters
of public interest” are at the heart of the First Amendment, and the constitutional
meaning of newsworthiness is broad.

After
Time, Inc. v.Hill, “newsworthiness” practically engulfed privacy under state
privacy laws. In the 1980s and 90s, scholars wrote “requiems” to the privacy
tort, declaring it nearly dead. Since Hill,
the Supreme Court has heard only a few cases involving the First Amendment and privacy.
It suggested that liability for the publication of true, private facts could be
unconstitutional, though it never ruled definitively on the issue.

It’s hard to
predict what would happen if the Hulk Hogan case did go to the Supreme Court.
For decades, the trend has been towards expanding free speech and expanding
“newsworthiness.” But we live in different times. Today, everyone is a
journalist, and the boundaries of public discourse are being pushed to extremes.
Though the public supports free speech in principle, it sees privacy as fragile
and imperiled. A good portion of the public seems to think that the law should
step in to aggressively protect privacy, especially online -- as the public reaction
to the Hogan case makes clear.

Public opinion
does not make law, but it does establish the cultural frame in which cases are
decided. The Hogan lawsuit could be the beginning of something big.